5762 - #06

War And The Innocent Bystander

Even as the vast majority of Americans and Canadians fully support the war on terrorism, there is a vocal minority that protests against the war. One of the concerns voiced by some of these opponents is the possibility of innocent civilian bystanders being killed as a result of the offensive. The United States government itself constantly clarifies that its enemy is not the Afghan people but terrorists and those that harbour terrorism. Indeed, it could be argued that the Afghan people are themselves victims of the Taliban conquerors of their homeland. Nonetheless, the war against terrorism has resulted and will continue to result in the deaths of civilian Afghan citizens and others. Protesters point to this reality and thereby declare the war to be unjust: They ask: even if the goal is commendable, how can one justify the spilling of innocent blood in the attempt to stop the terrorists?1 This is a question that needs to be addressed.
Rabbi J. David Bleich
2 writes: "Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians, but, to this writer's knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem."3 Unfortunately, Rabbi Bleich does not give any explanation as to why the "likelihood of civilian casualties" does not pose "a halakhic or moral problem." It may be that this is an assumed cost of war and the allowance for war inherently allows the loss of civilians. Minchat Chinuch, Mitzvah 425 states that in regard to the commandments that obligate the Jewish nation to wage war, there is no argument for exemption because of pikuach nefesh, concern for life. While concern for life generally allows (even demands) one to transgress a commandment, this dispensation does not apply to war commandments. Minchat Chinuch's argument is simple: war by definition is dangerous. It may be that war has its own rules. When the Torah allows or demands the waging of war, it could be argued that the Torah is, by definition, declaring a recognition that different moral guidelines have to apply than those that exist in peace situations.4 Since as U.S. Secretary of Defence Rumsfeld stated, the loss of civilians is an inevitable consequence of war,5 the halachic permission to wage war may itself recognize and sanction this inevitable loss of civilian lives. An allowance for war by definition removes culpability for these deaths.
Essentially, the moral question changes in the context of war. There is still a moral question that needs to be addressed but, with war, it is transformed. Our question is not whether the loss of civilian life or how much loss of civilian life is acceptable in the pursuit of a terrorist. Our question is whether war is an appropriate response to this terrorist incursion. If it is, by definition, it means an acceptance of loss of civilian life. Rabbi Bleich clarifies this distinctive nature of war by comparing a moral call for arms - such as a defensive war - to the law of the rodef, the pursuer.
6 According to Jewish Law, if one is threatening another's life, we are commanded to protect the one threatened even if it demands killing the pursuer. Rabbi Bleich, however, contends that under the law of rodef the possibility of harm to a bystander would limit the possible responses. A rodef may not be attacked if such action "is likely to result in casualties among noncombatants."7 The consequence of such a distinction is major. According to Rabbi Bleich, if the pursuit of a terrorist is defined as a police action - and thus carried out under the law of rodef - this action is significantly limited by the need to minimize potential harm to civilians. If this pursuit is defined as an act of justifiable war, however, this action is not thereby limited.8
Still, why is war unique? Why does war create a shift in moral axioms? Maharal, Gur Aryeh, Bereishit 34:13 sees war in the context of the nation. As an individual, one person may not be responsible for the actions of another and, therefore, ethically protected from suffering because of the other’s actions. However, Maharal contends that as part of a nation, in war this individual is subsumed under the group. He/she, thus, halachically shares the fate of the group, even if he/she is personally not responsible for the actions of the perpetrator. This is an example of the shift in moral axioms that is part of war. But this case may also serve to help elucidate the nature of this shift. In war, we see the nation, not the individual. Similarly, in war, it may be that we assert the value of the broad principle and not the specific morality of each detailed case. With a declaration of war against terrorism, a general goal to eradicate this evil becomes paramount notwithstanding the cost in lives.

Rabbi Benjamin Hecht e-mail


1 If the evil of terrorism is ultimately defined by the spilling of innocent blood, the question ironically is: how can one justify the spilling of innocent blood (in the military offensive) in order to prevent the spilling of innocent blood (by terrorists)?

2 See Contemporary Halakhic Problems, Volume 3, Preemptive War in Jewish Law, p. 277.

3 Rabbi Bleich, in this article, is discussing warfare within the context of Jewish Law, specifically certain issues involving the Jewish nation's right and/or obligation to wage war. Within this Insight, we are, for the purposes of moral investigation, extending aspects of this discussion to war in general as it may apply to all nations.The Noachide laws governing war as it applies to all nations, however, may be different than the laws governing a Jewish nation at war. Thus, this extension must be approached with some caution. Yet, it is my belief that this extension is generally applicable. Further on the status of warfare under the Noachide Code, see Rabbi J. David Bleich, Contemporary Halakhic Problems, Volume 2, Miscellaneous Questions: War and Non-Jews.

4 Another example of this shift in moral axioms is the case of the yefat to'ar, the beautiful woman captured in war. See Devarim 21:10-14. According to those Torah scholars that allow nations to initiate hostilities under the Noachide Code, the exclusion of war casualties from the prohibition of homicide may be another example of this shift. See, further, Ntziv, HaEmek Davar, Bereishit 9:5.

5 Even, in this case, with the U.S. intent to limit such losses.

6 See Sefer HaChinuch, Mitzvot 600 and 601.

7 Notwithstanding Rabbi Bleich's position, this issue in itself may be worthy of discussion. Yet, in that the law of rodef is different than the parameters of war, the point is still made.

8 Of course there must still be an evaluation of the projected extent of this cost in terms of the objectives of the war. This evaluation process, it should be recognized, is also an inherent part of the nature of war. For example, while danger is an acceptable consequence of war, great losses or even pyrrhic victories may not be justifiable. As such, while pikuach nefesh may not be a factor in evaluating a situation, the potential for great losses may override a command to fight if avoidance of this danger would be a normative battle decision.

9 In comparison, in a non-war situation, individual life would be the paramount concern.

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